The Ukraine v. Russia Arbitration under Annex VII of UNCLOS: The Jurisdictional Impact of the Incidental Territorial Sovereignty Dispute

Abstract

On 16 September 2016 Ukraine instituted proceedings against Russia before an arbitral tribunal constituted under Part XV and Annex VII of UNCLOS in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait. The proposed poster will, by way of graphical (timeline, maps, artwork) and textual illustration: (1) provide insights on the factual background and substance matter of the dispute and (2) specifically discuss the underlying territorial dispute as one important jurisdictional hurdle that the tribunal will have to face.

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Valentin Schatz
Research Associate & Ph.D. Candidate
Faculty of Law
University of Trier
schatz@uni-trier.de
Dmytro Koval
Associate Professor & Ph.D. Candidate
National University
Odessa Law Academy
dkoval@onua.edu.ua
The Ukraine v. Russia Arbitration
under Annex VII of UNCLOS
The Jurisdictional Impact of the Incidental
Territorial Sovereignty Dispute
Research Question
Do disputes which implicate territorial sovereignty
issues ("mixed disputes") fall within jurisdiction
ratione materiae provided by Art. 288 UNCLOS?
Pending case Ukraine v. Russia (UNCLOS Annex VII
arbitration)
Dispute concerns rights and jurisdiction over Crimean
maritime zones
Maritime entitlements depend on sovereignty over
Crimea ("the land dominates the sea")
Methodology
Interpretation of UNCLOS Part XV
Deductive approach based on principle of State
consent to jurisdiction
Inductive approach based on case-law and fictional
case studies
Results
Consent to jurisdiction provided by States Parties to
UNCLOS includes a degree of effectiveness
Jurisdiction over "mixed disputes" in cases where
UNCLOS dispute outweighs sovereignty dispute
Example: manifestly abusive sovereignty claims
(sovereignty dispute created after UNCLOS dispute)
Previously settled sovereignty issues revived after
the entry into force of UNCLOS carry less weight
Violations of substantive rules have no influence on
jurisdiction independently of implicit considerations
of effectiveness
Sovereignty dispute in Ukraine v. Russia arguably
carries less weight than sovereignty disputes at
issue in previous cases
However, it arguably outweighs UNCLOS disputes
Mauritius v. United Kingdom
v Philippines v. China (if tribunal had accepted
sovereignty disputes as incidental questions)
w Ukraine v. Russia
x Example of abusive claim

v w x
Figure 1: Maritime claims in the Black Sea
Figure 2: Jurisdictional impact of incidental sovereignty disputes
(for purposes of illustration only)

v w x